Brown vs. Board of Education -- 50 years later / WHAT GOES AROUND: Decades after exclusion by University of Maryland law school, Marshall had final say by not showing up

Juan Williams, New York Times

Published 4:00 am, Sunday, January 18, 2004

In 1930, Thurgood Marshall, a lanky honors graduate fresh from Lincoln University in Pennsylvania, realized that the law school he hoped to attend did not accept black students. Though the University of Maryland School of Law was just blocks from his parents' home in West Baltimore, he decided it would be a waste of time and upsetting to even bother to apply.

Marshall went to Howard University Law School, a private school 40 miles away in Washington, founded to educate former slaves. He could not afford to live in Washington so he had to commute. His mother, a kindergarten teacher in the inferior schools open to black children, pawned her wedding ring to pay the higher tuition. Marshall graduated from Howard No. 1 in the class of 1933.

But he held a grudge against the law school that had never given him a chance. In the late 1970s, Marshall told an interviewer from Columbia University's Oral History Archives that he had dreamed about "getting even with Maryland for not letting me go to its law school."

Years later, sitting with me for one of the last interviews before his death in 1993, Marshall admitted that he was still angry. His face tensed and his eyes, watery from glaucoma, focused sharply at the memory. A quiet, reclusive man who loved to tease and joke, the justice quickly turned serious and used profanity to describe the administrators who had enforced the law school's whites-only policy. But Marshall had already settled the score.

In 1933, Nathan Margold, a young Harvard law graduate, had written a report for the NAACP that concluded that the best way to defeat segregation was not to challenge the segregation law itself but to show a violation of the equal rights promised to all citizens under the Constitution. By law, black schools and white must be equal in every way. Marshall read the study several times. "The report stayed with me," he told me. "The South would go broke paying for truly equal, dual systems."

Up to then, there had been no major legal challenge to the black plight in education. One suit, against the University of North Carolina, had employed a similar tactic but had failed to move forward on a technicality. But Marshall believed that in the right state with the right student, the strategy could blow apart school segregation.

Only a year after graduating from Howard Law School, the 25-year-old Marshall put the strategy to the test. He persuaded a black Amherst College graduate, Donald Gaines Murray, to apply to Maryland's law school. As expected, Murray was rejected because of his skin color. But the rejection fit into Marshall's plan. He directed Murray to write a letter to the regents asking why an Amherst graduate with good grades who was the grandson of a prominent Maryland bishop could not get into the state university's law school. The regents responded: wait for a planned law school for blacks to be built or go out of state to Howard. The regents had fallen into a legal trap. Marshall used the letter, an explicit ban on black students, as the basis for a lawsuit against the university.

The case went to court in June 1935. Marshall argued that in 1896 the Supreme Court had ruled that blacks and whites could be segregated but must have equal facilities. No equal facility existed to educate Murray in the laws of the state of Maryland. The next day, a Baltimore City Court stunned lawyers on both sides by ruling that Murray must be admitted to the University of Maryland.

The case became a template for legal attacks on segregation in professional and graduate schools, from the University of Missouri to Texas and Oklahoma. Those cases eventually ended up in the Supreme Court, and in June 1950 the court ruled in favor of the NAACP. The majority opinion from the justices laid down a new standard for segregated schools: they had to be truly equal -- in resources, faculties and even tradition -- or the existing white school had to be integrated.

In the weeks after the decision, Marshall, now head of the NAACP Legal Defense Fund, held a conference for lawyers supporting his cause. Prominent black lawyers nationwide as well as top law professors from Harvard, Yale, Columbia and Howard met in New York for lengthy debates on the next step in the assault on segregated schools. They agreed to take a leap of legal logic and argue that any racially separate school violated the Constitution's promise of equal protection for all citizens, regardless of race. NAACP chapters across the country offered up examples of disparities between black and white schools:

-- In Clarendon County, S.C., white schools got 60 percent of the school board's funds even though three-quarters of the schoolchildren were black. The local courts ruled against Marshall and the NAACP in the case, Briggs vs. Elliott.

-- In Prince Edward County, Va., there was one high school for blacks, and it had no cafeteria or gym and was crammed with twice the number of students it was built to house.

-- In Topeka, Kan., a 7-year-old girl, Linda Brown, had to walk past a white school and across railroad tracks to catch a bus to take her to a black school.

The Supreme Court added two other cases that touched on the same issue of school segregation. In Delaware, the state government was appealing a lower court order to integrate schools, and in the District of Columbia, black parents were challenging segregation in public schools operating under federal jurisdiction.

With the cases clustered under the title Brown v. Board of Education, Marshall went before the court, arguing that since the end of slavery, black Americans had sought equal education and equal opportunity. The only justification for segregated schooling, he said, was a racist desire to keep people who were formerly in slavery "as near that state as is possible."

In its unanimous ruling, read from the bench by Chief Justice Earl Warren on May 17, 1954, the court said of the nation's black schoolchildren: "To separate them from others of similar age and qualification solely because of their race generates a feeling of inferiority as to their status in the community that may affect their habits and minds in a way very unlikely ever to be undone. ... Separate educational facilities are inherently unequal."

Marshall was there as the decision was read. He told a fellow lawyer, "We hit the jackpot."

In 1980, the University of Maryland School of Law opened a new library and named it for the Baltimore native on the U.S. Supreme Court, Thurgood Marshall. The dean, Michael Kelly, repeatedly called Marshall to invite him as the honored guest for the opening. The school had even commissioned a bust of him to be placed in the entryway. Marshall refused to attend, and when the university asked other members of the court to the ceremony in Baltimore, Marshall wrote to his colleagues: "I will not go there. I am very certain that Maryland is trying to salve its conscience for excluding the Negroes from the University of Maryland for such a long period of time."

If the school didn't want anything to do with the young Thurgood Marshall, he told me, then he didn't want anything to do with them now. He would not soon forgive his home state for denying him an education, but as far as he was concerned, he had repaired the scales of injustice that had weighed against him personally.

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